Melbourne, Victoria

Friday 19 August, 2016

The Hon. Justice Peter McClellan AM
Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse

Addressing the Judicial College of Victoria's Historical Sexual Offences program - meeting and managing community expectations.

Introduction

The Royal Commission is confronted by multiple and complex tasks. We are required to investigate the conduct of institutions when responding to the sexual abuse of children. We must make recommendation to ensure, as far as possible, children are not sexually abused in an institutional context in the future. Amongst many other issues we must identify what makes an institution child safe. We are also required to look at the response of both the civil and criminal justice systems. The first step in our work has been to talk to survivors of abuse.

For many survivors the telling of their personal story is difficult and re-traumatising. This will also be true of complainants of sexual abuse in civil or criminal proceedings in our courts. The difficulties survivors face are recognised in our terms of reference which direct the Commission to have regard to:

‘the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts, and the provision of opportunities for them to share their experiences in appropriate ways while recognising that many of them will be severely traumatised or will have special support needs’

Survivors come to the Commission for different reasons. For some a chance to tell their story and have it accepted is all they seek. Others come wanting their matter referred to police. Many come in the hope their contribution will help to create a safer society for children. 

Whatever their reason for coming to us the experience is challenging. One survivor described it as: “Coming forward is to go back!” In recounting past events, powerful memories and emotions are evoked, often in a distressing way. A significant challenge for the Commission has been to ensure that a person’s wellbeing both before and after they come to us to tell their story is protected. 

There are three pillars of our work. Private sessions, public hearings and our research and policy development program.

Private Sessions

Conscious of the trauma and suffering associated with child sexual abuse and the difficulties many survivors face in telling their stories, the Commonwealth Parliament amended the Royal Commissions Act 1902 for this Royal Commission. It created a process referred to as a ‘private session’.

Private sessions provide a safe, supportive environment where a person can tell their story in confidence to a Commissioner. For some survivors telling their story to a Commissioner is the first time they have disclosed their abuse. Although difficult, for many survivors, private sessions can be a powerful and healing experience. 

A private session is unlike any process in the criminal justice system. For us they are a primary source of information about sexual offending against children in institutions and the response of those institutions. They are not forensic. Private sessions allow a survivor to tell their story in their own words to a Commissioner. They are not cross-examined.  The session is recorded and we will report a great many of them in a de-identified form. 

We thought carefully about how we would conduct private sessions. Advice was sought from psychiatrists, psychologists and social workers from which we developed a number of principles. 

It is inevitable that a survivor will feel anxious or experience stress in relating their story to the Commission. Accordingly we try to avoid creating any suggestion of an intimidating environment. Private sessions are conducted in modest hotel rooms or in special rooms in our Sydney office. The atmosphere is informal and supportive.

A key component of child abuse within institutions is the abuse of power. This can impact a child’s development of self and influence their experiences as an adult. Many survivors have a feeling of helplessness. They feel that they do not have power or control over decisions relating to their lives. A challenge for the Commission is to ensure we do not reinforce this response.

Interactions with survivors must be respectful and allow informed decisions involving choice and flexibility. This, in itself, is an important mechanism for healing. Accordingly, sessions are tailored to the needs of the individual survivor. They may have someone speak on their behalf or have a support person. Survivors are invited to tell their story in whatever way they like with minimal questioning or interruptions. We ensure that their story remains confidential to the Commission. 

It is fundamental to the wellbeing of a survivor that they understand the private session procedure and the process in which they will engage. Resources are applied to ensure that every survivor understands and is comfortable with how the private session will be conducted. 

Of great importance to the welfare of survivors who come to private sessions is the role played by our counsellors. We have a number of counsellors who are experienced in working with people who have complex mental health issues.

Counselling support is available to survivors at every point in which they come in contact with the Commission. This includes: 

  • the Intake and Support Service (call centre) which is a counsellor led model 

  • early identification and assessment of complex needs of survivors by counsellors 

  • internal referral pathways for staff to refer survivors for additional counselling support 

  • debriefings with a counsellor at the conclusion of the private session.

  • counselling support being offered to all witnesses before, during and after public hearings and

  • prioritising use of the same counsellor across contact with the Commission to ensure safety, trust and rapport 

All survivors are debriefed by a counsellor at the end of their session. The counsellors follow up with a phone call a week after the private session to check on their welfare. If required we refer the survivor to follow-up counselling or legal services. 

It will be evident to this audience that some of these feature can be found in the criminal justice process – more in some jurisdictions than others. However it may not be provided by appropriately trained or experienced professionals. I am satisfied that the provision of effective support for survivors so that their well-being is maintained, is an essential element of any humane approach to the justice system. 

Different states currently have different witness assistant mechanisms. What we have learned is that in relation to sexual assault the need for support for survivors when retelling their story is high.

The process of coming forward with a complaint has the potential to re-traumatise many survivors. Speaking about the abuse they have suffered can have devastating consequences. Some will commit suicide unless appropriate intervention occurs. 

Any criminal justice system must be conscious of these risks and the need for the protection of a person who is in the process of bringing forward a complaint. The need for care is ongoing. Survivors may need support before, during and after any trial. Once triggered the trauma may continue long after their participation in the criminal justice process has ceased.

Public Hearings

When a survivor witness comes to a public hearing of the Royal Commission it will be difficult for them to identify any difference between our proceedings and those of a court. 

Some Commission procedures are of course less adversarial than analogous procedures in criminal courts. However, some of the challenges complainants face in criminal proceedings may exist for survivors participating in Commission proceedings. In some circumstances the Commission has adopted procedures already used in some Australian courts which are designed to make it easier for survivors to give evidence. Some of these procedures have eroded the adversarial characteristics of the conventional criminal trial.

The Adversarial vs The Inquisitorial

Much ink has been spilt on the differences between, and relative merits of, the adversarial and inquisitorial systems. However, rather than being understood as two separate systems never to be reconciled the two systems are converging. The European Court of Justice and the International Criminal Court are examples of hybrid courts.1  Most traditionally inquisitorial European systems have come to embrace adversarial features as a result of the European Covenant on Human Rights and the jurisprudence of the European Court of Human Rights. Most adversarial trials have moved towards the inquisitorial as a result of the range of modern case management practices.2

In Doggett v The Queen Gleeson, CJ observed that that the criminal justice system in Australia remains fundamentally an adversarial one.3  However, it is the proposition that a trial is ‘a contest between the prosecutor … and the accused’4  rather than a search for the truth that has created, for some in the community, a real sense of disquiet. 

Cross on Evidence describes the essential feature of the adversarial system as ‘the questioning of witnesses by the parties or their representatives, summoned for the most part by them, and called mainly in the order of their choice before a judge acting as umpire rather than as inquisitor’. 5

The fundamental difference between a trial and an inquiry is that the Commissioner is not an impassive umpire. A Commissioner must be fair. And a Commissioner, like any administrative decision-maker, must not be biased. However, the commission process is a process of inquiry, not of adjudication. Commission findings do not affect legal rights and interests. Commissioners make recommendations to government on matters they are tasked with investigating. A commissioner may participate in proceedings in a manner that would be unacceptable for a judge presiding over a criminal trial. I will return at a later stage to examine the issue of judicial intervention in more detail.

In Ratten v The Queen, Barwick CJ characterised the criminal trial in the following way:

‘Under our law a criminal trial … is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.’ 6

There is a legitimate debate both between lawyers and in the wider community as to whether the adversarial trial assists in establishing truth or operates to obscure it. The movement in the thinking of Spigelman CJ in his time on the bench reflects a developing concern about the legitimacy of the adversarial system at least in its present form.

In his Sir Maurice Byers lecture, Spigelman CJ said:

‘In the address I gave on the occasion of my swearing-in as Chief Justice … I noted that the adversary system, as a manifestation of the power of Socratic dialogue, was one of the greatest mechanisms for identification of truth that had ever been devised. This perspective reflected my then experience as a member of the bar. Judicial experience has provided a different perspective.

…He continued:

The recognition that the principal purpose of legal proceedings is to identify the true factual circumstances of any matter in dispute is of fundamental significance for the administration of justice and the maintenance of public confidence in that system. If this recognition constitutes a modification of the adversary system, it is a modification that should be made.

The public will never accept that “justice” can be attained by a forensic game. The public require a system dedicated to the search for truth, subject only to the fairness of the process and consistency with other public values.’7

The view that the criminal justice system obscures, or perhaps worse, is unconcerned with revealing what really happened will, if widely accepted, lead to community disenchantment. Importantly for the work I am engaged in, it can operate as a positive discouragement for survivors to participating in the criminal justice system. If the system does not have truth, as its fundamental objective but is seen as a sophisticated lawyers game they want no part of it.

Justice McCloskey of the High Court of Northern Ireland has said:

‘We are governed by a legal system in which sworn oral testimony dominates. This is the mechanism whereby the court seeks out the truth, it being the primary task of most courts to establish the facts upon which their decisions are based. Accordingly, it would be plainly inimical to the rule of law if the truth does not emerge and, therefore, the material facts are not established as a result of witnesses being afflicted by fear, intimidation or some emotional or physical incapacity. Justice would be threatened and injustice would flourish. Moreover, society would rightly be held to account for failing to take basic measures to protect some of its weakest members.’8

Special Measures

The difficulties faced by complainants of sexual abuse, including child sexual abuse, in the criminal justice process have been recognised for many years. Many survivors have told us of their own, and often unsatisfactory, experience of the process.

Parliaments have already responded to some of these concerns. New South Wales first introduced measures to assist complainants to give evidence in the early 1990s. Since that time all Australian jurisdictions have introduced a range of measures – often termed ‘special measures’ – to assist complainants by modifying the usual procedures for giving evidence. These measures have eroded some aspects of the adversarial system. 

However, although we tend to view special measures to assist complainants as a modern development, as far back as 1919 in England, the Court of Criminal Appeal held that if a witness might be intimidated by the accused’s presence the judge had the discretion to remove the accused from the witness’ line of sight.9

A number of special measures are now commonly available in criminal proceedings, although their use varies across jurisdictions. These include using pre-recorded interviews with the complainant as evidence in chief and prohibiting an unrepresented accused from personally cross-examining the complainant. Closed circuit television may be used in some cases, so that the complainant is able to give evidence from a room away from the courtroom. In relation to the Royal Commission’s public hearings many survivor witnesses choose to give their evidence via CCTV from a separate room. 

It is also common for a survivor to give evidence to the Royal Commission in the company of a support person. That person may be a family member, or sometimes a Royal Commission counsellor, who will sit with the survivor in the witness box as they give their evidence. In most State and Territories a complainant is entitled to a support person when giving evidence in proceedings in respect of sexual offences.10   

But not withstanding these measures for many survivors telling their story is deeply traumatising. Although some survivors wish their story to be publicly told the task of personally telling that story is simply too difficult. For this reason we allow survivors to tell their story in a public hearing by having another person read all or part of their statement. Of course this is not an approach which could presently be utilised in a criminal trial.

Another approach which can help to minimise a survivor’s difficulty is to allow them to give evidence by reading their statement to the Commission. Some people are unable to tell their story without uncontrollably breaking down unless they can read their previously prepared words. Rather than emerge through questioning by Counsel Assisting a survivor will tell their story in their own voice. The survivor tells the Commission what happened to them, the circumstances of the offending, the response of relevant institutions and the impact of these events on their lives. Of importance is to them is how they control the way in which their evidence is presented.

One difficulty often faced by complainants in the criminal trial process is that the impacts of their abuse are later used to attack their credibility in a trial of their abuser. Many survivors suffer depression or fall into drug and alcohol abuse. Some become offenders. The accused will rely on the consequences of the abuse they inflicted to undermine the complainant’s evidence. To describe this process as cruel underestimates the sense of wrong experienced by a survivor. 

It maybe unrealistic to expect that evidence in a trial could ever be given in the same manner as we receive it at the Commission. Aspects of the survivor’s statements that are of considerable importance to the Royal Commission may be irrelevant in a criminal trial. That said the criminal process is adapting. Pre-recorded interviews with police are often tendered as evidence in chief in relation to some complainants. The question may be whether police are adequately trained to conduct these interviews using open-ended questions and a ‘narrative style’ is another question. 

A survivor giving evidence in a public hearing may be cross-examined. Although this has, so far, been rare it has occurred. Because the Commission generally does not make findings as to whether the survivor has been abused by a particular individual, our task is to examine the response of the institution, this may limit the need to cross-examine a witness. However, these issues will be the central concern of a criminal trial, and under the adversarial system cross-examination will be inevitable. 

It will be well understood by those here today that the cross-examination of sexual assault complainants is a controversial issue. It is particularly controversial in relation to children and people with an intellectual disability.

Most if not all lawyers, and indeed some non-lawyers, would be familiar with Wigmore’s characterisation of cross-examination as ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’.11  Few, however, would be aware of the remarks that follow. Those remarks recognised the potential cross-examination has to distort the truth: 

‘However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer of experience. “You can do anything” said Wendell Phillips, “with a bayonet – except sit on it.” A lawyer can do anything with cross-examination – if he is skilful enough not to impale his own cause upon it.  He may…………… - make the truth appear like falsehood. But this abuse of its power is able to be remedied by proper control.’12

There are other criticisms.13 It has been described as ‘more a process of manipulating the witness through suggestive questioning, avoiding unfavourable disclosures, and obtaining jury sympathy.’14 And a skilled cross-examiner described as one who serves ‘to make an honest witness appear at best confused and at worst a liar’.15

In many cases, and we have all observed it, rather than concerned with uncovering the truth cross-examination becomes an attempt to confuse the witness, amplify any peripheral errors they make and deter them from maintaining truthful testimony.16

This issue is particularly acute in the sexual assault context. Given that the complainant will likely be the main prosecution witness their cross-examination will be critical. Their credibility will inevitably be significant for the jury. 

Research from the legal, linguistic and psychological disciplines has demonstrated that children, people with intellectual disabilities, victims of sexual assault, and people who have experienced a traumatic event have particular needs, and face particular difficulties when giving evidence.17 The traditional techniques of cross-examiners may confuse these witnesses and diminish their capacity to comprehend what they are being asked. This diminishes the accuracy and cogency of their evidence.18 For vulnerable witnesses, cross-examination, rather than exposing unreliability, risks producing it.19 Cross-examination can not only re-traumatise victims but can lead to inconsistent and inaccurate evidence.20

Confusion may be created in child witnesses by using complex language and sentence structure. Using double negatives, interrupting answers and jumping forwards and backwards in time will often distort a witness’ response.21

There is research that indicates that children are less likely to give accurate responses when asked closed questions, typical of cross-examination, rather than open questions.22 One study found that children aged between five and eight attempted to answer 75 percent of nonsensical closed questions such as ‘Is a box louder than a knee’. Whereas only a small proportion attempted to answer nonsensical open questions such as ‘what do bricks eat?’23 Leading questions, the typical technique of cross-examination, increase the risk of the child’s evidence incorporating incorrect details set out in the question.

The very factors that make children and people with a disability particularly vulnerable to abuse – their powerlessness, dependency and limited communication skills24  – are the factors that, for them, make court proceedings particularly challenging. Defence counsel are in a position of control and power and have the capacity to confuse, intimidate and manipulate vulnerable witnesses.25

As a community, we must ask whether this situation remains acceptable. It is an unfortunate, yet inescapable reality, that children will be the victims of very serious crimes. Yet they will be forced to seek justice in a system designed not for them, but for adults.

In the case of B the Court of Appeal of England and Wales said:

‘We emphasise that in our collective experience the age of witness is not determinative of his or her ability to give truthful and accurate evidence. Like some adults some children will provide truthful and accurate testimony, and some will not. However, children are not miniature adults, but children, are to be treated and judged for what they are, not what they will, in years ahead, grow to be.’26

The issues for complainants, in particular children and people with an intellectual disability, in relation to cross-examination are arguably exacerbated by an additional feature of the adversarial model – judicial neutrality.

Judicial (non)intervention

A hallmark of the adversarial system is that the trial judge should not descend into the arena but rather should hold the balance between the parties without taking part in the dispute.27 The risk of intervention lies in the judge being identified with one of the parties28

A consequence of the judge as umpire in party-controlled proceedings is that judges are cautious about interfering in the questioning of witnesses.29 Any discretion the judge has to protect a vulnerable witness from inappropriate questioning is exercised in an environment with tight structural constraints.30

Legislative authority for judicial intervention in the questioning of a witness can be found in section 41 of the Evidence Act. The Victorian Evidence Act provides that the court may disallow an improper question or improper questioning put to a witness in cross-examination.31 In relation to vulnerable witnesses32 section 41 provides that the court must disallow an improper question or improper questioning put in cross-examination unless the court is satisfied that, in all the relevant circumstances of the case it is necessary to put the question to the witness.

Subsection (3) of section 41 defines an improper question, or improper questioning to be, a question or sequence of questions that 

  • (a) Is misleading or confusing; or

  • (b) Is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

  • (c) Is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

  • (d) Has no basis other than a stereotype (for example, a stereotype based on the witness’ sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

In relation to the decision of the Victorian Parliament to provide a discretion to disallow improper question generally, and in relation to vulnerable witnesses to confer to duty to disallow such a question, the relevant explanatory memorandum stated:

‘The adoption, in Victoria, of a two step approach recognises the capacity of the court to control proceedings by enabling regulation of the questioning of all witnesses, without unduly interfering with the trial process. It also acknowledges, however, that special protection is required for vulnerable witnesses and the mandatory obligation to consider all relevant circumstances is designed to facilitate a positive culture of judicial intervention for these witnesses.’33

In TA Spigelman CJ said, in relation to the NSW version of s 41:

‘The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

The words of s 41 direct attention to the effect of questioning upon the witness. In a sexual assault matter, it is appropriate for the Court to consider the effect of cross-examination and of the trial experience upon a complainant when deciding whether cross-examination is unduly harassing, offensive or oppressive.’34

More generally, however, these amendments do not seem to have ushered in a more interventionist judicial culture.35 The Evidence Act provisions require a subjective judgment as to whether a question is misleading or confusing or whether it has been put in a way that is belittling, insulting or otherwise inappropriate.36 They require a judge to have sufficient knowledge to know if a question is misleading or confusing for that witness. They also rely on a judge’s attitudes as to what is, in relation to that witness, inappropriate or an insult.

With respect to the use of the term ‘unduly’, some commentators have argued that this should be understood in the context of the nature of the adversarial trial.37 Inherent in the adversarial model is the right to test a witness’s account and for this to be balanced against the stress caused to the witness. Odgers states ‘effective cross-examination may involve a form of “harassment”. It may cause embarrassment. However, it may be justifiable nonetheless’.38 It is incumbent on all of us to reflect on these words in the context of a trial involving an immature or traumatised or otherwise vulnerable complainant.

Those terms are value-laden. Reasonable minds may differ on what constitutes harassment, embarrassment or even what is considered justifiable. Furthermore, the legal profession and members of the general community may interpret these terms rather differently.

Intermediaries and Special Hearings

In the course of its criminal justice work the Royal Commission is exploring processes and procedures that may alleviate some of these problems. Two important development in some jurisdictions are intermediaries and special hearings.

Intermediaries can be used to assist vulnerable witnesses at both the investigative stage and in preparation for a trial. The intermediary is generally a professional with expertise in the communication difficulties that have been identified with respect to the witness. They conduct an assessment of the communication skills of the witness and recommend to police, and later to court the appropriate communication styles for that witness.

Ideally, a ‘ground rules’ hearing occurs before the witness’ evidence is taken. At that hearing the intermediary can advise the court with respect to the witness’s requirements. The judge will indicate to counsel which recommendations of the intermediary are to be adopted. The intermediary will sit with the witness during their evidence, and may intervene where they believe a communication difficulty is likely to occur.

A witness intermediary scheme was piloted in England and Wales in 2004-05.39

The pilot was successful the scheme and was rolled out nationally. 

Of the intermediary scheme the former Lord Chief Justice of England and Wales, Lord Judge has said:

‘The use of intermediaries has introduced fresh insights into the criminal justice process. There was some opposition. It was said, for example, that intermediaries would interfere with the process of cross-examination. Others suggested they were expert witnesses or supporters of the witness. They are not. They are independent and neutral. They are properly registered. Their responsibility is to the court. And they are used at much earlier stages in the process, to flag up potential difficulties in advance of the trial. These can then be addressed in during the trial process.

… Their use is a step which improved the administration of justice and it has done so without a diminution in the entitlement of the defendant to a fair trial. In some cases juries have convicted, and in others there have been acquittals. But the use of intermediaries has meant that a number of those who are among the most vulnerable in the community may now be heard when before they would have been forced to remain silent.’40

There are further benefits to the use of intermediaries. The first is that the complainant is no longer dependent on the judge having kept up with the most recent learnings in respect of vulnerable witnesses. The second is that even in circumstances where the judge has appraised him or herself of the relevant knowledge that knowledge will inevitably be of a general character. It is generally understood that children develop differently. A particular child may in some capacity, for example language, be more or less developed than the average child of that age. And persons diagnosed with a particular cognitive impairment may not have that impairment manifest in precisely the same way. Complainants may be uniquely challenged by court process.

The advantage of an intermediary is that the judge is able to understand the capacity including disabilities of a complainant that are relevant and told of the challenges that that complainant will face in the courtroom. It allows the intermediary to assist not only the judge, but the parties to ask questions that will best assist the complainant to give effective evidence. This objective is fundamental to a system of justice.

Both New South Wales and South Australia have commenced intermediary schemes that draw, to some extent, on the experience of the scheme in England and Wales. 

An additional way of dealing with the challenges some sexual assault complainants face is through the use of special hearings. Special hearings provide for the evidence of complainants – that is, evidence in chief, cross-examination and re-examination – to be recorded before the trial, in the absence of the jury.

As I understand it special hearings are available in Victoria. They are used in criminal proceedings relating to a charge for a sexual offence41 where, at the time of the commencement of the proceedings, the complainant is under 18 or has a cognitive impairment.

Special hearings may facilitate the more effective use of other special measures. For example, if the cross-examination takes place in the absence of a jury, prosecution counsel, the judge, and, if relevant, an intermediary, may feel more comfortable intervening to object or suggest alternative wordings of questions to suit the language and cognitive abilities of the witness. Such interventions can then be edited out of the final video that is presented to a jury. Full recording of the complainant’s evidence may also reduce delay for the complainant and the stress and anxiety that is likely to arise if the complainant has to be ready to give evidence on one or more occasions before the court is ready for the evidence to be given. However the full benefit will only be realised if the special hearing is conducted at an early stage of the proceedings. 

The giving of evidence at an earlier stage means that the memory of the complainant is fresh and for this reason more likely to be accurate.42 Importantly, the complainant may undertake counselling which may otherwise have been postponed to minimise the risk that his or her evidence becomes tainted.43 The complainant’s participation in proceedings is brought to an end at an earlier stage allowing the focus to shift to the complainant’s recovery.44 And in the context of proceedings in which the assessment of a complainant’s credibility is often determinative, a complainant’s emotional response to an alleged offence is recorded closer to the time of the allegation.45

Whilst special hearings are currently only available for child complainants it may be that the benefits associated with special hearings would be similar in relation to adult complainants.  The use of special hearings is an issue the Royal Commission is examining in its criminal justice work.

Conclusion

Lord Judge has observed:

‘Our system is adversarial. It depends on the proposition that the results of the adversarial system will represent justice. But we have to face the reality that if the adversarial system does not produce justice, that is justice to everyone involved in the process, it will have to be re-examined and it should be re-examined.’46

Traditional aspects of the adversarial system have already been eroded in response to a recognition that they were ill-suited to securing justice for victims of sexual offences. For both complainants and the broader community this was, quite rightly, unacceptable. Although many offences involve harm, when harm is said to come from the breach of intimate boundaries that we are all entitled to have respected, it is important to recognize that, just as the accused has an interest in the truth emerging, so too does the victim. The emergence of the truth is important both to provide justice for the accused but also for the complainant. Whatever may have been acceptable in earlier times I do not believe that a justice system crafted without the fundamental objective of identifying the truth should be accepted today.

 [1] Bronitt and Mares, ‘Investigating the Adversarial and Inquisitorial Systems of Law’ (2004) 16 Legal Date 1, 1-2.

 [2] Finn ‘Inquisitorial Trials for Sexual Offences and “Fair Trial” Rights’ (2009) 15 Canterbury Law Review 317, 319.

 [3] (2001) 208 CLR 343, [1].

 [4] (2001) 208 CLR 343, [1].

 [5] Heydon, Cross on Evidence (10th ed, 2015), [17070].

 [6] (1974) 131 CLR 510, 517.

 [7] Spigelman ‘Truth and the Law’ The Maurice Byers Lecture (Sydney, 26 May 2011)

 [8] McCloskey, ‘Treatment of Vulnerable Witnesses’ [2011] Journal of the Commonwealth Lawyers Association 27, 27.

 [9] R v Smellie (1919) 14 Cr App 128.

 [10] Criminal Procedure Act 1986 (NSW) s 294C(1); Criminal Procedure Act 2009 (Vic) s 365.

 [11] Wigmore, Wigmore on Evidence (1974) vol 5, s 1367. 

 [12] Wigmore, Wigmore on Evidence (1974) vol 5, s 1367.

 [13] See, for example, Keane ‘Towards a Principled Approach to the Cross-Examination of Vulnerable Witnesses’ (2012) 6 Criminal Law Review 407.

 [14] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 551.

 [15] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 551.

 [16] See also, Finn ‘Inquisitorial Trials for Sexual Offences and “Fair Trial” Rights’ (2009) 15 Canterbury Law Review 317, 318. 

 [17] Keane ‘Towards a Principled Approach to the Cross-Examination of Vulnerable Witnesses’ (2012) 6 Criminal Law Review 407, 408.

 [18] Keane ‘Towards a Principled Approach to the Cross-Examination of Vulnerable Witnesses’ (2012) 6 Criminal Law Review 407, 408; Tinsley and McDonald, ‘Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges’ (2011) 42 VUWLR 705, 728; Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 540.

 [19] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 560; Tinsley and McDonald, ‘Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges’ (2011) 42 VUWLR 705, 728.

 [20] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 550.

 [21] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 312.

 [22] Woodward, Hepner and Stewart, ‘Out of the Mouths of Babes: Enabling Children to Give Evidence in the Justice System’ (2014) 39 Alternative Law Journal 27, 27; Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 555.

 [23] Waterman, Blades and Spencer ‘Do Children Try to Answer Nonsensical Questions?’ (2000) 18 British Journal of Developmental Psychology 211, 222 cited in Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 555.

 [24] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 545.

 [25] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 552.

 [26] B [2010] EWCA Crim 4, [40].

 [27] Yulli v Yulli [1945] 1 All ER 183, 189.

 [28] Yulli v Yulli [1945] 1 All ER 183, 189.

 [29] Tinsley and McDonald, ‘Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges’ (2011) 42 VUWLR 705, 728.

 [30] Tinsley and McDonald, ‘Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges’ (2011) 42 VUWLR 705, 728.

 [31] Section 41(1)

 [32] Vulnerable witnesses are defined as a witness: under the age of 18; or, with a cognitive impairment or intellectual disability; or, whom the court considers vulnerable having regard to any relevant condition or characteristic of the witness of which the court is, or is made aware, any mental or physical disability of the witness of which the court is, or is made aware and the context in which the question is put including the nature of the proceeding and in a criminal proceeding the nature of the offence and the relationship between the witness and any other party. 

 [33] Odgers, Uniform Evidence Law (11th ed, 2014), [1.2.3805] (emphasis added).

 [34] R v TA (2003) 57 NSWLR 444 [8], [13].

 [35] Woodward, Hepner and Stewart, ‘Out of the Mouths of Babes: Enabling Children to Give Evidence in the Justice System’ (2014) 39 Alternative Law Journal 27, 28; Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 312; Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 549.

 [36] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 312; Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 549.

 [37] Odgers, Uniform Evidence Law, (11th ed, 2014) [1.2.3810].

 [38] Odgers, Uniform Evidence Law, (11th ed, 2014) [1.2.3810].

 [39] Woodward, Hepner and Stewart, ‘Out of the Mouths of Babes: Enabling Children to Give Evidence in the Justice System’ (2014) 39 Alternative Law Journal 27, 28.

 [40] The Rt Hon Lord Judge ‘Vulnerable Witnesses in the Administration of Criminal Justice’ (Speech delivered at the 17th AIJA Oration in Judicial Administration, Sydney, 7 September 2011) cited in Woodward, Hepner and Stewart, ‘Out of the Mouths of Babes: Enabling Children to Give Evidence in the Justice System’ (2014) 39 Alternative Law Journal 27, 30.

 [41] Criminal Procedure Act 2009, s 369. The Judge must direct a special hearing be held unless, on application by the prosecution, the judge directs that the complainant is to give direct testimony: ss 370(1A), 370(2).

 [42] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 309.

 [43] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 309.

[44] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 556.

[45] Kebbell and Westera, ‘Promoting pre-recording complainant evidence in rape trials: Psychological and practice perspectives’ (2011) 35 Criminal Law Journal 376, 379.

[46] Lord Judge, ‘The Evidence of Child Victims: the Next Stage’ (Law Reform Committee Lecture, November 2013).